From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
June 22 — Captains for a Virginia county fire department aren't exempt from overtime because their primary duty is responding to emergency calls, not managing others, a federal appeals court ruled ( Morrison v. Cty. of Fairfax , 2016 BL 197902, 4th Cir., No. 14-2308, 6/21/16 ).
“The court adopted a bright line test that if an employee is primarily a first responder that employee is nonexempt, regardless of the management duties the employee has,” Molly Elkin, an attorney for the captains, told Bloomberg BNA June 22.
The Fairfax County Fire Department captains perform tasks such as evaluating team members' performance and administering discipline determined by higher-ranking officials, Judge Stephanie D. Thacker wrote for the U.S. Court of Appeals for the Fourth Circuit, joined by judges William B. Traxler and Pamela A. Harris.
But the captains spend only a fraction of their time on those tasks, Thacker said. The “major emphasis” of their jobs isn't exempt from the Fair Labor Standards Act's overtime requirement, she said, reversing summary judgment to the county and awarding it to the captains.
An FLSA rule known as the first responder regulation says firefighters are excluded from the overtime exemption for management employees.
But this doesn't render inapplicable another FLSA regulation known as the primary duties test, Thacker said. The primary duty test includes factors for determining whether an employee's primary duty is management.
The DOL adopted the first responder regulation in 2004. This is the first case the Fourth Circuit has decided that interprets it, Elkin said.
The Labor Department filed a brief and appeared at oral argument at the court's request.
It supported the captains' contention that first responder regulation incorporates a primary duty inquiry but urged the court to submit the case to a jury to determine the captains' primary job duty, Elkin said.
A DOL spokeswoman declined to comment June 22.
The first responder regulation is entitled to the Fourth Circuit's deference because there is nothing “to suggest that it does not reflect the agency’s fair and considered judgment,” Thacker said. In reaching this conclusion, the appeals court joined the Second Circuit, she said.
An attorney for the fire department didn't respond to requests for comment.
Woodley & McGillivary LLP represented the captains. Hunton & Williams LLP represented the fire department. Attorneys from the Solicitor of Labor's office represented the DOL.
To contact the reporter on this story: Jon Steingart in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Gerard_Morrison_v_County_of_Fairfax_VA_Docket_No_1402308_4th_Cir_.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)